HomeMy WebLinkAboutRes 03-99 01/19/1999VWL/
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RESOLUTION 3-99
A RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH
TELENOIS, INC. (TCI OF ILLINOIS) TO PROVIDE CABLE TELEVISION SERVICES
IN THE VILLAGE OF MOUNT PROSPECT
WHEREAS, the Mayor and Board of Trustees of the Village of Mount Prospect did
authorize execution of a Franchise Agreement for providing Cable Television services
through passage of Resolution No. 27-81, thereafter amended with the passage of
Resolution 35-93; and
WHEREAS, Chapter 6 of the Village Code of Mount Prospect governs the Franchise
Agreement required to operate Cable Television in the Village; and
WHEREAS, the Cable Television Franchise Agreement may be modified from time to
time, as provided in Chapter 6 of the Village Code; and
WHEREAS, the Mayor and Board of Trustees of the Village of Mount Prospect have
determined that the best interest of the Village would be served by authorizing
execution of a Franchise Agreement, a copy of said Agreement is attached hereto and
hereby made a part hereof as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT:
SECTION ONE: That the Mayor and Board of Trustees of the Village of Mount Prospect
do hereby authorize the execution of a Franchise Agreement between the Village of
Mount Prospect and Telenois, Inc., d/b/a TCI of illinois, Inc., a copy of said Agreement
attached hereto and hereby made a part hereof as Exhibit "A".
SECTION TWO: The Village President and Village Clerk are authorized and directed to
execute the Franchise Agreement.
elenoisfTCI
Page 2 of 2
SECTION THREE: That this Resolution shall be in full force and effect from and after
its passage, approval and publication in pamphlet form in the manner provided by law.
NAYS: None
AYES: Clowes, Corcoran, Hoefert, Lohrstorfer, Nocchi, Wilks
ABSENT: None
PASSED AND APPROVED this 19th day of January , 1999.
Gerald L. Farley ~
Village President
ATTEST:
Vel{ha I_owe
Village Clerk
H:\G EN~ile$~WlN~agrmts~Telenois (TCt)1.99.d0c
FRANCHISE AGREEMENT
Between
Village of Mount Prospect
And
Telenois, Inc. d/b/a
TCI of Illinois, Inc.
H:\GENZCABLE\TCI Final Version.doc
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Table of Contents
Section 1. Definitions .............................................................................. 6
Section 2. Grant of Franchise .................................................................. 10
2.1 Grant .................................................................................. 10
2.2 Use of Public Streets and Ways ........................................ 10
2.3 Duration ............................................................................. 11
2.4 Effective Date .................................................................... 11
2.5 Franchise Nonexclusive .................................................... 11
2.6 Police Powers .................................................................... 11
2.7 Effective of Acceptance .................................................... 12
Section 3. Franchise Fee and Financial Controls .................................... 12
3.1 Franchise Fee .................................................................... 12
3.2 Payments ........................................................................... 12
3.3 Acceptance of Payment and Recomputation ..................... 12
3.4 Franchise Fee Reports ....................................................... 13
3.5 Annual Franchise Fee Reports .......................................... 13
3.6 Audits ................................................................................ 13
3.7 Interest on Late Payments ................................................. 13
3.8 Alternative Franchise Compensation ................................13
3.9 Maximum Legal Compensation ....................................... 13
3.10 Additional Commitments Not Franchise Fees .................. 14
3.11 Costs of Publication .......................................................... 14
3.12 Tax Liability ...................................................................... 14
3.13 Payment on Termination ................................................... 14
3.14 Other Providers ................................................................. 14
Section 4. Administration and Regulation .............................................. 15
4.1 Authority ........................................................................... 15
4.2 Rates and Charges ............................................................. 15
4.3 Rate Discrimination .......................................................... 15
4.4 Filing of Rates and Charges .............................................. 15
4.5 Time Limits Strictly Construed ......................................... 16
4.6 General Performance Evaluation ...................................... 16
Section 5. Financial and Insurance Requirements .................................. 17
5.1 Insurance Requirements .................................................... 17
5.2 Deductibles and Self-Insured Retention ............................17
5.3 Indemnification ................................................................. 18
5.4 Letter of Credit .................................................................. 19
5.5 Liquidated Damages .......................................................... 20
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Section 6. Customer Service ................................................................... 21
6.1 Customer Service Standards ............................................. 21
6.2 Subscriber Privacy ............................................................ 21
6.3 Customer Service Guarantees ........................................... 21
6.4 Emergency Alert System ................................................... 22
Section 7. Reports and Records .............................................................. 22
7.1 Open Records .................................................................... 22
7.2 Confidentiality .................................................................. 23
7.3 Plant Survey Report .......................................................... 23
7.4 Copies of Federal and State Reports ................................. 23
7.5 Complaint File and Reports .............................................. 24
7.6 Inspection of Facilities ...................................................... 24
7.7 False Statements ................................................................ 24
Section 8. System, Programming and Channel Capacity ....................... 24
8.1 Grantee Compliance .......................................................... 24
8.2 Broad Programming Categories ........................................ 24
8.3 Ascertainment of Programming and Customer
Satisfaction ........................................................................ 25
8.4 Deletion or Reduction of Programming
Categories .......................................................................... 25
8.5 Parental Control Device .................................................... 25
8.6 Leased Access Channels ................................................... 26
8.7 Continuity of Service ........................................................ 26
8.8 Services for the Disabled .................................................. 26
Section 9. Public, Educational and Governmental Access ..................... 26
Section 10. General Street Use and Construction ..................................... 28
10.1 Construction ...................................................................... 29
10.2 Location of Facilities ......................................................... 29
10.3 Relocation ......................................................................... 29
10.4 Restoration of Streets ........................................................ 29
10.5 Maintenance and Workmanship ........................................ 30
10.6 Reservation of the Grantor Street Rights .......................... 30
10.7 Street Vacation .................................................................. 30
10.8 Discontinuing Use of Facilities ......................................... 31
10.9 Hazardous Substances ....................................................... 31
10.10 Undergrounding of Cable .................................................. 31
10.11 Construction Codes ........................................................... 33
10.12 Standards ........................................................................... 33
Section 11. System Design ....................................................................... 33
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Section 12. General Construction Matters ................................................ 34
12.1 Interference ........................................................................ 34
12.2 Test and Compliance Procedures ...................................... 34
12.3 Additional Tests ................................................................ 34
Section 13. Service Extension, Construction and Interconnection ........... 34
13.1 Equivalent Service ............................................................ 34
13.2 Service Availability ........................................................... 35
13.3 Interconnection with Other Cable Systems ....................... 35
13.4 Connection of Public Facilities ......................................... 35
13.5 Line Extensions ................................................................. 36
Section 14. Technical Standards ............................................................... 36
14.1 Emergency Standby Power ............................................... 36
14.2 Headend Performance ....................................................... 37
Section 15. Franchise Breaches; Termination of Franchise ...................... 37
15.1 Procedure for Remedying Franchise Violations ............... 37
15.2 Revocation ......................................................................... 38
15.3 Removal ............................................................................ 39
15.4 Receivership and Foreclosure ........................................... 39
15.5 Non-enforcement by the Grantor ...................................... 40
Section 16. Abandonment ......................................................................... 40
16.1 Effect of Abandonment ..................................................... 40
Section 17. Franchise Renewal and Transfer ............................................ 41
17.1 Renewal ............................................................................. 41
17.2 Transfer ............................................................................. 42
Section 18. Severability ............................................................................ 42
Section 19. Miscellaneous Provisions ....................................................... 42
19.1 Preferential or Discriminatory Practices Prohibited .......... 42
19.2 Notices ............................................................................... 43
19.3 Binding Effect ................................................................... 43
19.4 Authority to Amend .......................................................... 43
19.5 Governing Law .................................................................. 43
19.6 Statute o£ Limitations ........................................................ 43
19.7 Captions ............................................................................ 43
19.8 Joint Work ]Effort .............................................................. 43
19.9 Entire Agreement .............................................................. 43
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Signatures ............................................................................... 44
Exhibit A Customer Service Obligations ............................... 45
Exhibit B Public Facilities Designated for Cable Service ..... 49
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CABLE TELEVISION SYSTEM FRANCHISE AGREEMENT
This Cable Television System Franchise Agreement ("Agreement") is entered into in
Mount Prospect, Illinois, this Iq'r~t day of ~'~u~'{ , 1999 by and between the
VILLAGE OF MOUNT PROSPECT ("Grantor" or "Village"), and TELENOIS, INC., doing
business as TCI OF ILLINOIS.
WHEREAS, the Grantor is authorized to grant one or more nonexclusive franchises to
construct, operate and maintain a cable television system within the municipal boundaries of the
Village; and
WHEREAS, the Grantor has considered the financial condition, technical ability and
legal qualifications of the Grantee; and
WHEREAS, the Grantor, after such consideration, analysis and deliberation as are
required by applicable law, has approved and found sufficient the financial, technical and legal
qualifications of the Grantee to provide cable television service within the Village; and
WHEREAS, the Grantee is willing to accept this Agreement subject to such terms and
conditions, and to abide by those terms and conditions; and
WHEREAS, the public has had adequate notice and opportunity to comment on the
Grantee's application to provide cable television service within the Village;
NOW, THEREFORE, in consideration of the mutual promises made herein, and other
good and valuable consideration, the receipt and the adequacy of which is hereby acknowledged,
the Grantor and the Grantee do hereby agree as follows:
SECTION 1. DEFINITIONS
For the purposes of this Agreement and all exhibits attached hereto the following terms,
phrases, words and their derivations shall have the meaning given herein. When not inconsistent
with the context, words used in the present tense include the future, words in the plural include
the singular, and words in the singular include the plural. Words not defined shall be given their
common and ordinary meaning. The word "shall" is always mandatory and not merely directory.
1.1 "Access" means the availability for noncommercial use by various agencies, institutions,
organizations, groups and individuals in the community, including the Grantor and its designees,
of the Cable System to acquire, create, receive, and distribute video, Cable Services, and signals
as permitted under applicable law, and further described as follows including, but not limited to:
a) "Public Access" means Access where organizations, groups or individual
members of the general public, on a nondiscriminatory basis, are the primary users.
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b) "Educational Access" means Access where Schools are the primary users of
programming and services.
c) "Governmental Access" means Access where goverrunental institutions or their
designees are the primary users of programming and services; and
d) "PEG Access" means Public Access, Educational Access, and Governmental
Access, collectively.
1.2 "Access Channel" means any Channel, or portion thereof, designated for non-
commercial Access purposes or otherwise made available to facilitate or transmit Access
programming or services.
1.3 "Access Cost(s)" means, without limitation, any costs, expense, charge, fee, or payment
of any kind incurred in any way in connection with the purchase of equipment for the production
of, or the provision of, access programming or service of any kind in connection with any capital
expenditure related thereto.
1.4 "Affiliate" when used in connection with the Grantee means any corporation, Person or
entity who owns or controls, is owned or controlled by, or is under common ownership or control
with, the Grantee.
1.5 "Basic Cable Service" means any service tier which includes the retransmission of local
television broadcast signals and all Public, Education and Government Access channels.
1.6 "Cable Acts" mean the Cable Communications Policy Act of 1984 and the Cable
Television Consumer Protection and Competition Act of 1992 and any amendments thereto,
including the Telecommunications Act of 1996, and any future federal cable television
legislation.
1.7 "Cable Operator" means any Person or groups of Persons, including the Grantee, who
provide Cable Service over a Cable System and directly or through one or more Affiliates own a
significant interest in such Cable System or who otherwise control or are responsible for, through
any arrangement, the management and operation of such a Cable System.
1.8 "Cable Service" means the one way transmission to Subscribers of video programming
or other programming service, and Subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
1.9 "Cable System" means a facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to provide Cable
Service which includes video programming and which is provided to multiple Subscribers within
a community, but such term does not include (A) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (B) a facility that serves
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Subscribers without using any public right-of-way; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II of the Federal Communications Act (47
U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for
purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the
transmission of video prograrrmfing directly to Subscribers; or (D) any facilities of any electric
utility used solely for operating its electric utility systems.
1.10 "Channel" means a portion of the electromagnetic spectrum which is used in a Cable
System and is capable of delivering a video signal, including live feed.
1.11 "Commercial Subscribers" means any Subscribers other than residential Subscribers.
1.12 "Complaint" means any written or verbal communication from a Subscriber to the cable
operator or the Village regarding an unresolved matter as it relates to the slandards and services
set forth in this Franchise Agreement.
1.13 "FCC" means the Federal Communications Commission.
1.14 "Franchise" means the non-exclusive and revocable authorization or renewal thereof for
the construction or operation of a Cable System such as is granted by this Agreement, whether
such authorization is designated as a Franchise, license, resolution, contract, certificate,
agreement or otherwise.
1.15 "Franchise Area" means the area within the jurisdictional boundaries of the Village,
including any areas annexed by the Grantor during the term of this Agreement.
1.16 "Gross Revenues" means all amounts received by the Grantee in whatever form and
from all sources, in connection with the operation of the Grantee's Cable System to provide
Cable Services within the Franchise Area. "Gross Revenues" shall include, without limitation,
all amounts for all Cable Services, including, but not limited to, basic, expanded basic, premium,
and pay-per-view services, installation fees and charges, leased access channels or services,
installation fees and charges. "Gross Revenues" shall also include any revenue received by any
Affiliate of the Grantee where such revenue in the ordinary course of business, as of the date of
this Agreement, should have been paid to the Grantee in connection with the operation of its
Cable System to provide Cable Services within the Franchise Area. "Gross Revenues" shall not
include, copyright fees, Access Costs, advertising revenue, home shopping revenue, bad debt,
sales taxes, or other taxes which are collected by Grantee on behalf of and for payment to the
local, state or federal government. Grantor reserves the right to charge the Grantee any franchise
fee, tax or assessment for revenues derived from interactive services provided by Grantee over
the Cable System; provided that such franchise fee, tax or other assessment is collected from all
other providers of the same or similar service whether offered on a wireline or wireless basis.
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1.17 "Headend" or "Hub" means any facility for signal reception and dissemination on a
Cable System, including cables, antennas, wires, satellite dishes, monitors, switches, modulators,
processors and all other related equipment and facilities.
1.18 "Interconnect" or Interconneetion" means the provision by the Grantee of technical,
engineering and physical components to maintain a physical linking of the Grantee's PEG
Channels so that PEG Channels of technically adequate quality may be sent to and received from
the other neighboring systems owned by the Grantee in accordance with this Agreement.
1.19 "Leased Access Channel" means any Channel commercially available for programming
for a fee or charge by the Grantee to members of the general public in accordance with federal
law,
1.20 "Normal Business Hours" means those hours during which most similar businesses in
the community are open to serve customers, In all cases, "normal business hours" must include
some evening hours at least one night per week and some weekend hours.
1.21 "Normal Operating Conditions" means those service conditions which are within the
control of Grantee. Normal Operating Conditions includes those conditions which are ordinarily
within the control of Grantee including, but not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of
the Cable System. Normal Operating Conditions excludes those conditions which are not within
the control of Grantee including, but not limited to, natural disasters, civil disturbance, power
outages, telephone network outages and severe or unusual weather conditions.
1.22 "Person" means any individual, sole proprietorship, partnership, association, or
corporation, or any other form of entity or organization.
1.23 "School" means any accredited public educational institution, including primary and
secondary Schools, and colleges and universities.
1.24 "Service Interruption" means the loss of picture or sound on one or more cable
channels
1.25 "Street" means each of the following which have been dedicated to the public or are
hereafter dedicated to the public and maintained under public authority or by others and located
within the Franchise Area: Streets, roadways, highways, avenues, lanes, alleys, sidewalks,
easements, rights-of-way and similar public property and areas.
1.26 "Subscriber" means any Person who or which elects to subscribe to, for any purpose,
Cable Services provided by the Grantee by means of or in connection with the Cable System and
whose premises are physically wired and lawfully activated to receive Cable Services from the
Grantee's Cable System.
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SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) The Grantor hereby grants to the Grantee a nonexclusive and revocable
authorization to make reasonable and lawful use of the Streets within the Franchise Area to
construct, operate, maintain, reconstruct, and repair a Cable System for the purpose of providing
only Cable Services subject to the terms and conditions set forth in this Agreement. Grantee will
obtain all necessary permits and licenses to offer services other than Cable Services.
(B) This Agreement is intended to convey limited rights and interests only as to those
Village Streets in which the Village has an actual interest. It is not a warranty of title or interest
in any right-of-way; it does not provide the Grantee any interest in any particular location within
the right-of-way; and it does not confer rights other than as expressly provided in the grant
hereof. This Agreement does not deprive the Village of any powers, rights or privileges it now
has or may later acquire in the future to use, perform work on or to regulate the use of and to
control the Village's Streets covered by this Agreement, including without limitation the right to
perform work on its roadways, right-of-way or appurtenant drainage facilities, including
constructing, altering, paving, widening, grading, or excavating thereof.
(C) This Agreement is subject to the general police power of the Grantor. Nothing in
this Agreement shall be deemed to waive the requirements of the other codes and ordinances of
general applicability enacted, or hereafter enacted, by the Grantor provided they do not
materially adversely affect the rights provided by this Agreement.
(D) This Agreement only authorizes the Grantee to engage in providing Cable Service,
as that term is defined in 47 U.S.C. Sec. 522(6), as amended.
(E) The Grantee promises and guarantees, as a condition of exercising the privileges
granted by this Agreement, that any Affiliate or joint venture or partner of the Grantee directly
involved in the offering of Cable Services in the Village, or directly involved in the management
or operation of the Cable System in the Village will also comply with the terms and conditions of
this Agreement.
2.2 Use of Public Streets and Ways
Subject to the Grantor's supervision and control, the Grantee may erect, install, construct,
repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along the
public Streets, including rights-of-way and public easements within the Franchise Area such
wires, cables, conductors, ducts, conduits, vaults, amplifiers, pedestals, attachments and other
property and equipment as are necessary and appurtenant to the operation of a Cable System for
the provision of Cable Services within the Franchise Area. The Grantee shall comply with all
applicable construction codes, laws, ordinances, regulations and procedures, now in effect or
enacted hereafter; and must obtain any and all necessary permits from the Public Works
Department prior to commencing any construction activities. Grantee, through this Agreement,
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is granted extensive and valuable rights to operate its cable system for profit using Grantor's
public rights of way and public utility easements within the franchise area in compliance with all
applicable Grantor construction codes and procedures.
2.3 Duration
The term of this Agreement and all rights, privileges, obligations and restrictions
pertaining thereto shall be fifteen (15) years from the effective date of this Agreement, unless
terminated sooner as hereinafter provided.
2.4 Effective Date
Agreement shall be~v~/b/[({7 1999, unless the Grantee fails
The
effective
date
of this
to file an unconditional written acceptance of this Agreement and post the security required
within ninety (90) days after such acceptance, in which event this Agreement shall be null and
void, and any and all rights of the Grantee to own or operate a Cable System within the Franchise
Area under this Agreement are hereby terminated.
2.5 Franchise Nonexclusive
This Agreement shall be nonexclusive, and is subject to all prior rights, interests,
agreements, penuits, easements or licenses granted by the Grantor to any Person to use any
Street, right-of-way, easement, or property for any purpose whatsoever, including the right of the
Grantor to use same for any purpose it deems fit, including the same or similar purposes allowed
the Grantee hereunder. The Grantor may at any time grant authorization to use the public rights-
of-way for any purpose not incompatible with the Grantee's authority under this Agreement and
for such additional Franchises for Cable Systems as the Grantor deems appropriate, provided,
however, that in accordance with 65ILCS 5/11-42-11, such additional grants shall not contain
terms and conditions more favorable or less burdensome than those granted to the Grantee herein
in the case of similar rights granted pursuant to this Agreement, when considered in its entirety.
2.6 Police Powers
Grantee's rights hereunder are subject to the police powers of Grantor to adopt and
enforce ordinances of general applicability, necessary to the safety, health and welfare of the
public and Grantee agrees to comply with all such applicable laws and ordinances enacted, or
hereafter enacted, by Grantor or any other legally-constituted governmental unit having lawful
jurisdiction over the subject matter hereof, provided they do not materially adversely affect the
rights provided by this Agreement.
Subject to the foregoing paragraph, Grantor reserves the right to exercise its police
powers, notwithstanding anything in this Agreement to the contrary, and any conflict between
the provisions of this Agreement and any other present or future lawful exercise of Grantor's
police powers shall be resolved in favor of the latter provided such exercise is necessary to the
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safety, health, and welfare of the public and does not materially, adversely affect the rights
granted herein.
This Agreement and the Franchise fees paid hereunder are not in lieu of any other
required permit, authorization, fee, charge or tax., except as provided under applicable law.
2.7 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the Village's
legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Village's
intervening in any proceeding affecting the Cable System; provided, however, that the Grantor
shall not be entitled to indemnification under Section 5.3 of this Agreement; (3) accepts and
agrees to comply with each and every provision of this Agreement; and (4) agrees that the
Agreement was granted pursuant to processes and procedures consistent with applicable law, and
that it will not raise any claim to the contrary.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the benefits and privileges granted under this Agreement and in
consideration of permission to use the Grantor's Streets, the Grantee shall pay as a Franchise fee
to the Grantor, throughout the duration of this Agreement, an amount equal to five percent (5%)
of Gross Revenues as defined herein. Accrual of such Franchise fees shall commence as of the
effective date of this Agreement. The Franchise fees are in addition to all other fees, assessments,
taxes or payments that the Grantee may be required to pay under any federal, state or local law.
3.2 Payments
The Grantee's Franchise fee payments to the Grantor shall be computed quarterly for the
preceding calendar quarter. Each payment shall be due and payable no later than forty-five (45)
after the last day of the preceding calendar quarter.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the Grantor that the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as
a release of any claim the Grantor may have for further or additional sums payable or for the
performance of any other obligation of the Grantee.
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3.4 Franchise Fee Reports
Each payment shall be accompanied by a written repor~ to the Grantor, verified by an
officer of the Grantee, containing an accurate statement in summarized form of Grantee's Gross
Revenues and the computation of the payment amount.
3.5 Annual Franchise Fee Reports
Grantee shall, within one hundred twenty (120) days after the end of each calendar year,
furnish to Grantor a detailed statement stating the total amount of Gross Revenues and all
payments, deductions and computations for the preceding calendar year. Such statement shall
be certified by the chief financial officer or controller of Grantee prior to submission to Grantor.
3.6 Audits
On an annual basis, upon thirty (30) days' prior written notice, the Grantor shall have the right to
conduct an independent audit of the Grantee's financial records for the purpose of verifying
Franchise fee payments for the previous calendar year. The Grantor shall notify the Grantee in
writing thirty (30) days prior to the date of the audit and the Grantee shall make available for
inspection such records as may be relevant to the determination of Franchise fees due. If the audit
shows that franchisee fees have been underpaid by five percent (5%) or more, the Grantee shall
pay the total cost of the audit.
3.7 Interest on Late Payments
In the event that a Franchise fee payment or other amount owed to the Village, is not
received by the Village on or before the due date, or is underpaid, the Grantee shall pay in
addition to the payment, or sum due, interest from the due date at a rate equal to the prime rate of
interest as quoted by the First National Bank of Chicago (First Chicago) on the date payment was
due at the maximum rate permitted under Illinois law.
3.8 Alternative Franchise Compensation
In the event a court of competent jurisdiction rules that the payment to the Village of any
or all of the Franchise fees in the manner described by this Agreement is, in part or in whole,
unconstitutional, or, if legislation is passed which invalidates all or some of the Franchise fees,
the Grantee shall pay to the Grantor compensation equivalent to the compensation paid to the
Grantor by other similarly situated users of the Grantor's Streets for the Grantee's use of the
Grantor's Streets, provided that in no event shall such payments exceed the equivalent of five
percent (5%) of Gross Revenues.
3.9 Maximum Legal Compensation
The parties acknowledge that, at present, applicable federal law limits the Grantor to
collection of a maximum permissible Franchise fee of five percent (5%) of Gross Revenues. In
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the event that at any time during the duration of this Agreement, the Grantor is authorized to
collect an amount in excess of five percent (5%) of Gross Revenues, the Grantor and the Grantee
shall negotiate in good faith amendments to this Franchise to take in account modifications to the
benefits provided to the Grantor under this Agreement as consideration for such increased
Franchise fees.
3.10 Additional Commitments Not Franchise Fees
No term or condition in this Agreement shall in any way modify or affect the Grantee's
obligation to pay Franchise fees to the Grantor. Although the total sum of Franchise fee
payments and additional commitments set forth elsewhere in this Agreement may total more than
five percent (5%) of the Grantee's Gross Revenues in any 12-month period, the Grantee agrees
that the additional commitments herein are not Franchise fees as defined under any federal law,
nor are they to be offset or credited against any Franchise fee payments due to the Grantor.
3.11 Tax Liability
Payment of the Franchise fee under this Agreement shall not exempt the Grantee from the
payment of any license, permit fee or other fee, tax or charge on the business, occupation,
property or income of the Grantee that may be imposed by the Grantor, subject to applicable law.
3.12 Payment on Termination
If the Agreement terminates for any reason, the Grantee shall file with the Grantor within
ninety (90) calendar days of the date of the termination, a Statement of Gross Revenues, certified
by an independent certified public accountant or attested to by an Officer of the Grantee,
showing the Gross Revenues received by the Grantee since the end of the previous fiscal year.
The Grantor reserves the right to satisfy any remairdng financial obligations of the Grantee to the
Grantor by utilizing the funds available in a letter of credit or other security provided by the
Grantee.
3.13 Other Providers
(A) In the event that the Village grants one (1) or more Franchise(s) or similar
authorization(s), for the construction, operation and maintenance of any communication facility
which shall offer services substantially equivalent to services offered by the System, it shall not
make the grant on more favorable or less burdensome terms. If the Grantee finds that the
agreement(s) granting said other franchise(s) contain material provisions imposing lesser
obligations on the Grantee(s) thereof than are imposed by the provisions of this Agreement, the
Grantee may petition the Village for a modification of this Agreement. Grantor shall not
unreasonably deny the Grantee's request for modification(s) with respect to said lesser
obligations as may be determined to be necessary to insure fair and equal treatment by this
agreement and said other agreements. In the event that the Grantee petitions Grantor for relief
under this section, Grantee shall provide, in writing, a list of the terms and conditions for which
the Grantee is seeking relief.
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SECTION 4. ADMINISTRATION AND REGULATION
4.1 Authority
The Grantor is vested with the power and right to regulate the exercise of the privileges
permitted by this Agreement in the public interest, or to delegate that power and right, or any part
thereof, to the extent permitted under state and local law, to any agent, in its sole discretion.
4.2 Rates and Charges
(A) All of the Grantee's rates and charges related to or regarding Cable Services shall
be subject to regulation by the Grantor to the full extent authorized by applicable federal, state
and local laws.
(B) Any Subscriber shall have the right to have its service, or any portion thereof,
totally disconnected, which shall include the removal of any equipment owned by the Grantee
from the Subscriber's residence.
4.3 Rate Discrimination
All of the Grantee's rates and charges shall be published (in the form of a publicly-
available rate card), and, except as may be permitted under applicable Federal law, shall be
nondiscriminatory as to all Persons and organizations of similar classes, under similar
circumstances and conditions. Except with respect to bona fide credit risks, the Grantee shall
apply its rates in accordance with governing law with similar rates and charges for all
Subscribers receiving similar Cable Services, without regard to race, color, familial, ethnic or
national origin, religion, age, sex, sexual orientation, marital, military or economic status, or
physical or mental disability. The Grantee shall provide equivalent Cable Services to all
residential Subscribers at similar rates and to Commercial Subscribers as authorized by
applicable laws. Nothing heroin shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns; or
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Agreement, the Grantee shall maintain on file with
the Grantor a copy of its rate card for Cable Services provided under this Agreement.
(B) The Grantee shall provide to the Grantor a complete schedule of current rates and
charges for any and all Leased Access Channels, or portions of such Channels, provided by the
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Grantee. The schedule shall include a description of the price, terms and conditions established
by the Grantee for Leased Access Channels.
4.5 Time Limits Strictly Construed
Whenever this Agreement sets forth a time for any material act to be performed by the
Grantee, such time shall be deemed to be of the essence, and any failure of the Grantee to
perform within the allotted time may be considered a material breach of this Agreement, and
sufficient ground for the Grantor to invoke any relevant provision of this Agreement, provided
that Grantor has given Grantee notice and opportunity to cure as set forth in Section 15.
However, in the event that the Grantee is prevented or delayed in the performance of any of its
obligations under this Agreement by reason beyond the reasonable control of the Grantee such as
acts of God (for example, floods, fires, hurricanes, tornadoes, earthquakes, nondelivery by
suppliers, other unavoidable casualty, war, sabotage, vandalism, strikes or unusually severe
weather conditions), the Grantee's performance shall be excused during the force majeure
occurrence and thereafter shall, under the circumstances, have a reasonable time to perform the
affected obligations under this Agreement or procure a substitute for such obligation which is
satisfactory to the Grantor. The same force majeure exception shall apply to the Grantor with
regard to any of its obligations under this Agreement.
4.6 General Performance Evaluation
(A) The Grantor may hold performance evaluation sessions on the fourth, and seventh
and twelfth anniversary dates of the effective date of this Agreement. All such evaluation
sessions shall be conducted by the Grantor.
(B) Special evaluation sessions may be held at any time by the Grantor during the
term of this Agreement.
(C) Topics which may be discussed at any evaluation session may include, but are not
limited to, Cable Service, rate structures, Franchise fees, liquidated damages, free or discounted
Cable Services, application of new technologies, system performance, Cable Services provided,
programming offered, customer complaints, privacy, amendments to this Agreement, judicial and
FCC rulings, line extension policies, and the Grantor or the Grantee's rules; provided that nothing
in this subsection shall be construed as requiring the renegotiation of this Agreement.
(D) During evaluations under this Section, the Grantee shall fully cooperate with the
Grantor and shall provide such information and documents as the Grantor may require to perform
the evaluation.
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SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Insurance Requirements
(A) General Requirement. The Grantee must have adequate insurance during the
entire term of this Agreement to protect against claims for injuries to Persons or damages to
property which in any way relate to, arise from, or are connected with this Agreement or involve
the Grantee, its agents, representatives, contractors, subcontractors and their employees
(B) Initial Insurance Limits. The Grantee must keep insurance in effect in accordance
with the minimum insurance limits the Grantor may reasonably set from time to time to reflect
increased liability of the Grantor. The Grantee shall obtain policies for the following initial
minimum insurance limits:
(I) Commercial General Liability: $2,000,000 combined single limit per
occurrence for bodily injury, personal injury, and property damage; and for those policies with
aggregate limits, a $5,000,000 aggregate limit;
(2) Automobile Liability: $2,000,000 combined single limit per accident for
bodily injury and property damage; and
(3) Employer's Liability: $2,000,000.
5.2 Deductibles and Self-Insured Retentions
If the Grantee changes its policy to include a self-insured retention, the Grantee shall give
notice of such change to the Grantor. Any deductible or self-insured retention of the policies
shall not in any way limit the Grantee's liability to the Grantor.
(A) Endorsements.
(1) All policies shall provide, or shall be endorsed so that:
(i) The Grantor, its officers, officials and employees are to be covered
as and have the rights of additional insureds with respect to liability arising out
of activities performed by or on behalf of the Grantee under this Agreement or
applicable law, or in the construction, operation or repair, or ownership of its
Cable System;
(2) All policies shall contain, or shall be endorsed so that the policy shall not
be suspended, voided, canceled, or reduced in coverage or in limits, nor shall the intention not to
renew be stated by the insurance Grantee, except after thirty (30) days prior written notice, has
been given to the Village Manager and Fi~ance Director.
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(B) Acceptability of Insurers. The insurance obtained by the Grantee shall be placed
with insurers with a Best's rating of no less than "A".
(C) Verification of Coverage. The Grantee shall furnish the Grantor, on an annual
basis, with certificates of insurance and endorsements or a copy of the page of the policy
reflecting blanket additional insured status. The certificates and endorsements for each insurance
policy are to be signed by a Person authorized by that insurer. The certificates and endorsements
for each insurance policy are to be on standard forms or such forms as are consistent with
standard industry practices and are to be received and approved by the Grantor prior to the
commencement of activities associated with this Agreement. The Grantee hereby warrants that
its insurance policies satisfy the requirements of this Agreement and Village law.
5.3 Indemnification
(A) Scope of Indemnity. Except to the extent of the negligent act or omission of the
Grantor, its officers, boards, commissions, agents or employees, the Grantee shall, at its sole cost
and expense, indemnify, hold harmless, and defend the Grantor, and its officers, boards,
commissions, agents, and employees, against any and all claims, including, but not limited to,
third party claims, suits, causes of action, proceedings, and judgments for damages or equitable
relief arising out of the construction, operation or repair of its Cable System, regardless of
whether the act or omission complained of is authorized, allowed, or prohibited by this
Agreement. Without limiting in any way the Grantee's obligation to indemnify the Grantor and
its officers, boards, commissions, agents, and employees as set forth above, this indemnity
provision applies to, but is not limited to, reasonable attorneys' fees and costs for damages and
liabilities as follows:
(1) To Persons or property, in any way arising out of or through the acts or
omissions of the Grantee, its contractors, subcontractors and their officers, employees, or
agents, or to which the Grantee's negligence shall in any way contribute;
(2) Arising out of any claim for invasion of the right of privacy; for
defamation of any Person, finn or corporation; for the violation or infringement of any
copyright, trademark, trade name, service mark, or patent; for a failure by the Grantee to
secure consents from the owners or authorized distributors of programs to be delivered
by the Cable System, except with respect to any programming or information on the
PEG Channels, or for violation of any other right of any Person;
(3) Arising out of the Grantee's failure to comply with the provisions of any
federal, state or local statute, ordinance, rule or regulation applicable to the Grantee with
respect to any aspect of its business to which this Agreement applies
(B) Duty to Give Notice and Tender Defense. The Grantor shall give the Grantee
timely written notice of any claim or of the commencement of any action, suit or other
proceeding covered by the indemnity in this Section. In the event any such claim arises, the
Grantor or any other indemnified party shall tender the defense thereof to the Grantee and the
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Grantee shall have the right and duty to defend, settle or compromise any claims arising
hereunder and the Grantor shall cooperate fully therein.
5.4 Letter of Credit
(A) No later than the effective date of this Agreement, the Grantee shall establish and
provide to the Grantor, as security for the faithful performance by the Grantee of all provisions of
this Agreement, a letter of credit in the amount of fifty-thousand dollars ($50,000.00).
(B) The letter of credit shall be maintained at fifty-thousand dollars ($50,000.00)
throughout the term of this Agreement, provided that at intervals no more often than every three
(3) years, the Grantor shall have the right to review whether this amount should be increased to
reflect increases in the Chicago Metropolitan Area Consumer Price Index during the prior three
(3) year period.
(C) The letter of credit may be assessed by the Grantor after affording the Grantee due
process, and an opportunity to cure, in accordance with the terms and conditions of this
Agreement, with respect to alleged violations, for purposes including, but not limited to, the
following:
(1) Failure of the Grantee to pay the Grantor sums due under the terms of this
Agreement,
(2) Reimbursement of costs borne by the Grantor to correct violations of this
Agreement not corrected by the Grantee,
(3) Monetary remedies or damages assessed against the Grantee due to default
or breach of requirements of this Agreement, and
(D) The Grantee agrees that it shall not attempt, through litigation or otherwise, to
prevent or inhibit the Grantor from drawing on the letter of credit. The Grantee shall have the
right of a de novo court appeal if the Grantee believes the letter of credit has not been properly
drawn in accordance with this Agreement. Any funds the Grantor erroneously or wrongfully
withdraws from the letter of credit shall be returned to the Grantee with interest from the date of
withdrawal at a rate equal to the prime rate of interest as quoted by the First National Bank of
Chicago (First Chicago) within thirty (30) business days of a final determination that the
withdrawal was in error or wrongful.
(E) If the Grantee fails within thirty (30) days after the date of written notice to pay to
the Grantor any Franchise fees, assessment, taxes or amounts lawfully due which the Grantor
determines can be remedied by a draw upon the letter of credit, the Grantor may thereafter
withdraw the amount thereof from the letter of credit. Upon such withdrawal, the Grantor shall
notify the Grantee of the amount and date thereof.
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(F) The letter of credit deposited pursuant to this Section shall become the property of
the Grantor in the event that this Agreement is lawfully terminated or revoked for cause by
reason of the default or material breach by the Grantee, and the Grantee has exhausted all of its
remedies relating thereto. The Grantee, however, shall be entitled to the return of the letter of
credit deposited in accordance with this Section, or any portion thereof remaining upon normal
expiration of this Agreement.
(G) The rights reserved to the Grantor with respect to the letter of credit are in
addition to all other rights of the Grantor whether reserved by this Agreement or authorized by
law or equity, and no action, proceeding' or exercise of a fight with respect to such letter of credit
shall constitute a waiver of any other right the Grantor may have.
(H) The Grantor shall give the Grantee written notice of any withdrawal under this
Section upon such withdrawal, specifying the mount withdrawn and the specific reason for
withdrawal. Within seven (7) days following receipt by the Grantee of written notice from the
Grantor that any amount has been withdrawn from the letter of credit, the Grantee shall restore
such letter of credit to the amount required under this Agreement. Failure by the Grantee to so
restore the letter of credit shall be considered a material breach of this Agreement.
5.5 Liquidated Damages
(A) Amounts. Because the Grantee's failure to comply with provisions of the
Agreement will result in injury to the Grantor, and because it will be difficult to estimate the
extent of such injury, the Grantor and the Grantee agree to the following liquidated damages for
the following violations, which liquidated damages may be assessed following completion of the
procedures set forth in Section 15.1 of this Agreement. These damages represent both parties'
best estimate of the damages resulting from the specified injury. The liquidated damage amounts
are in 1999 dollars and shall be increased every three years by the increase in the U.S. Consumer
Price Index for the Chicago Metropolitan Region.
(1) For failure to extend a service line or provide similar video programming
as required: One-hundred dollars ($100) per day, and, if after Grantee has
paid on the violation for thirty days, and the violation still exists, then the
amount shall be $250 per day.
(2) For all other material violations of this Agreement for which actual
damages may not be ascertainable: One hundred dollars ($100) per day,
and, if after Grantee has paid on the violation for thirty days, and the
violation still exists, then the amount shall be $250 per day.
(3) For failure to give proper notice under Section 111 A 2 of Exhibit A of this
Agreement: $100 per day.
(4) For failure to comply with Section 9 A (4) of this Agreement, $100 per
day for the first thirty days and $250 per day thereafter.
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(B) Date of Violation, Notice and OpportuniW to Cure. The date of violation will be
the date the Grantee receives notice of the violation from Grantor. The Grantor must provide
written notice of a violation. Upon receipt of notice, the Grantee will have a period of thirty (30)
days to cure the violation or thirty (30) days to present to the Grantor a reasonable remedial plan.
For those alleged violations which cannot be reasonably cured in thirty (30) days, the Grantor, in
the exercise of reasonable discretion, shall decide whether to accept or reject the remedial plan
presented by the Grantee. Liquidated damages occur only in the event that either a cure has not
occurred within thirty (30) days or in the exercise of reasonable discretion the Grantor rejects the
plan and commence at that point.
(C) Effect on Duty to Comply. The collection of liquidated damages by the Village
shall in no respect affect:
(1) Compensation owed to Subscribers; or
(2) The Grantee's obligation to comply with the provisions of this Agreement
or applicable law.
(D) Liquidated damages, if elected by Grantor, shall be Grantor's exclusive remedy
for the failure or violation to which the liquidated damages have been applied.
(E) In no event shall the aggregate amount of liquidated damages paid by Grantee
exceed $50,000 through the term of the franchise.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
The Grantee shall meet any customer service standards adopted by the Federal
Communications Commission, set forth on Exhibit A. The Grantee shall be entitled to pass
through to customers as external costs any amounts resulting from customer service standards
passed by the Village that exceed FCC standards.
6.2 Subscriber Privacy
The Grantee will comply with privacy rights of Subscribers in accordance with federal,
state and local law.
6.3 Customer Service Guarantees
Grantee guarantees that installations and service calls will be performed during the time
period agreed upon with the Subscriber or Subscriber remuneration will be provided.
Remuneration will be determined by Subscriber requirements, and may take the form of free
installation, service credit or promotional items of comparable value.
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6.4 Emergency Alert System
(A) In accordance with and at the time required by the provisions of FCC Regulations
Par~ 11, subpart D, Section ll.51(h)(1), and as such provisions may from time to time be
amended, the Grantee shall install, if it has not already done so, and maintain an Emergency
Alert System tEAS) for use in transmitting Emergency Act Notifications (EAN) and Emergency
Act Terminations (EAT) in local and state-wide situations as may be designated to be an
emergency by the Local Primary (LP), the State Primary (SP) and/or the State Emergency
Operations Center (SEOC), as those authorities are identified and defined within FCC Reg.
Section 11.51.
(B) The Franchising Authority shall permit only appropriately trained and authorized
Persons to operate the EAS equipment and shall take reasonable precautions to prevent any use
of the Grantee's Cable System in any manner that results in inappropriate use thereof, or any loss
or damage to the Cable System. Except to the extent expressly prohibited by law, the
Franchising Authority shall hold the Grantee, its employees, officers and assigns harmless from
any claims arising out of the emergency use of its facilities by the Franchising Authority,
including, but not limited to, reasonable attorneys' fees and costs.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
(A) The Grantee shall manage all of its operations in accordance with a policy of
keeping its documents and records open and accessible to the Grantor. The Grantor shall have
access to, and the right to inspect, any books and records of the Grantee and affiliated entities
which are reasonably related to and necessary for the administration or enforcement of the terms
of this Agreement. The Grantee shall not deny the Grantor access to any of the Grantee's records
necessary for the administration or enforcement of the terms of this Agreement, on the basis that
the Grantee's records are under the control of any parent corporation, affiliated entity or a third
party. The Grantor may, in writing, request copies of any such records or books and the Grantee
shall provide such copies within thirty (30) days of the transmittal of such request. One copy of
all reports and records required under this or any other Section shall be furnished to the Grantor
at the sole expense of the Grantee. If the requested books and records are too voluminous, or for
security reasons cannot be copied or removed, then the Grantee may request, in writing within
ten (10) days of the due date for the requested books and records, that the Grantor inspect them at
one of the Grantee's local metropolitan area offices. If any books or records of the Grantee are
not kept in a local metro office and not made available in copies to the Grantor upon written
request as set forth above, and if such records are necessary for enforcement of this Agreement,
then all reasonable travel and maintenance expanse(s) incurred in making such examination shall
be paid by the Grantee.
(B) The Grantee shall at all times maintain and provide Grantor access to a full and
complete set of plans, records and "as built" maps showing the exact location of all Cable System
equipment installed or in use in the Franchise Area, exclusive of electronics, Subscriber drops
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and equipment provided in Subscribers~ homes. These maps shall be accompanied by a copy in a
standard format and medium agreed upon by the Grantor and the Grantee.
7.2 Confidentiality
The Grantor agrees to treat as confidential any books and records that constitute
proprietary or confidential information under federal or state law, to the extent the Grantee makes
the Grantor aware of such confidentiality. The Grantee shall be responsible for clearly and
conspicuously stamping the word "Confidential" on each page that contains confidential or
proprietary information, and shall provide a brief written explanation as to why such information
is confidential under state or federal law. If the Grantor believes it must release any such
confidential books and records in the course of enfoming this Agreement, or for any other reason,
it shall advise the Grantee in advance so that the Grantee may take appropriate steps to protect its
interests. If the Grantor receives a demand from any Person for disclosure of any information
designated by the Grantee as confidential, the Grantor shall, so far as consistent with applicable
law, advise the Grantee and provide the Grantee with a copy of any written request by the party
demanding access to such information within a reasonable time. Until otherwise ordered by a
court or agency of competent jurisdiction, the Grantor agrees that, to the extent permitted by state
and federal law, it shall deny access to any of the Grantee's books and records marked
confidential as set forth above to any Person.
7.3 Plant Survey Report
At the Grantor's request, the Grantee shall make available to the Grantor an annual plant
survey report which shall include, but not be limited to, a description of the portions of the
Franchise Area that have been cabled and have all Cable Services available and an appropriate
engineering evaluation including suitable electronic measurements conducted in conformity with
FCC technical requirements. Said report shall be in sufficient detail to enable the Grantor to
ascertain that the requirements and technical standards of the FCC have been achieved and
maintained. If the Grantor has reason to believe that portions or all of the Cable System does not
meet the applicable FCC technical standards, at the Grantor's request, but not more often than
once per year, the Grantee and the Grantor shall agree upon the appointment of a qualified
independent engineer to evaluate and verify the technical performance of the Cable System. The
cost of the evaluation shall be borne by Grantor unless the independent engineer determines that
the cable system materially fails to meet FCC standards, in which case, Grantee shall reimburse
Grantor for all costs of the evaluation.
7.4 Copies of Federal and State Reports
The Grantee shall submit to the Grantor upon request copies of all pleadings,
applications, notifications, communications and documents of any kind, submitted by the
Grantee or its parent corporation to any federal, state or local court; regulatory agencies or other
government bodies if such documents specifically relate to the operations of the Grantee's Cable
System within the Franchise Area. The Grantee shall submit such documents to the Grantor no
later than thirty (30) days after the request is received. Any such confidential material determined
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to be exempt from public disclosure shall be retained in confidence by the Grantor and its
authorized agents and shall not be made available for public inspection.
7.5 Complaint File and Reports
(A) The Grantee shall keep an accurate and comprehensive file of any and all
complaints regarding the Cable System which have been forwarded to the Grantee from the
Grantor, in a manner consistent with the privacy rights of Subscribers, and the Grantee's actions
in response to those complaints. These files shall remain open to the Grantor during normal
business hours. Upon request, the Grantee shall provide the Grantor an executive summary
quarterly, which shall include information concerning customer complaints; and
(B) Upon request, a log of all service interruptions shall be maintained and provided
to the Grantor on a quarterly basis.
7.6 Inspection of Facilities
The Grantor may inspect any of the Grantee's facilities and equipment at any time upon at
least one business day's notice, or, in case of an emergency, upon demand without prior notice.
7.7 False Statements
Any intentional false or misleading statement or representation in any report required by
this Agreement may be deemed a material breach of this Agreement and may subject the Grantee
to all remedies, legal or equitable, which are available to the Grantor under this Agreement or
otherwise.
SECTION 8. SYSTEM, PROGRAMMING AND CHANNEL CAPACITY
8.1 Grantee Compliance
The Grantee shall meet or exceed the programming and channel capacity requirements set
forth in this Agreement, and in all applicable federal, state or local statutes, regulations or
standards.
8.2 Broad Programming Categories
The Grantee shall provide at least the following broad categories of programming to the
extent such categories are reasonably available.
(A) Educational programming;
(B) News & Information;
(C) Sports;
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(D) General entertainment (including movies);
(E) Children/family-oriented
(F) Arts, culture and performing arts;
(G) Science/documentary;
(H) Weather information;
(I) National, state, and local government or public affairs;
(J) PEG Access programming;
8.3 Ascertainment of Programming and Customer Satisfaction
The Grantor may, at its sole option and expense, undertake an annual survey of
community views of cable operations in the Franchise Area, including, but not limited to,
programming, response to community needs, satisfaction and dissatisfaction with Cable Services
offered by the Grantee, and customer service. The Grantee, upon request, shall consult and
cooperate with the Grantor in developing and implementing an ascertainment methodology. If
the Grantor desires, the survey required may be in a form that can be transmitted to Subscribers
with one or more bills for service, such as postage-paid self-addressed post cards. The Grantor
shall provide the results of such survey to the Grantee within two (2) months after completing the
survey.
8.4 Deletion or Reduction of Programming Categories
(A) The Grantee shall not delete any broad category of programming within its
control.
(B) In the event any applicable law or regulation materially alters the terms and
conditions under which the Grantee carries programming within a broad programming category,
then the Grantee shall be obligated to carry such programming only upon reasonable terms and
conditions.
8.5 Parental Control Device
Upon request by any Subscriber, the Grantee shall make available, at applicable rates, a
parental control or lockout device, traps or filters to enable a Subscriber to control access to both
the audio and video portions of any or all Channels. The Grantee shall inform its Subscribers of
the availability of the lockout device at the time of their initial subscription and periodically
thereafter.
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8.6 Leased Access Channels
The Grantee shall meet the Leased Access Channel requirements imposed by federal law.
8.7 Continuity of Service
(A) It shall be the right of all Subscribers to continue to receive Cable Services from
the Grantee insofar as their financial and other obligations to the Grantee are honored. Subject to
the force majeure provisions of this Agreement, the Grantee shall use its best efforts to ensure
that all Subscribers receive continuous, uninterrupted Cable Service regardless of the
circumstances.
(B) In the event of a change in ownership, or in the event a new Cable Operator
acquires the Cable System in accordance with this Agreement, the Grantee shall cooperate with
the Grantor and such new Cable Operator in maintaining continuity of service to all Subscribers.
8.8 Services for the Disabled
The Grantee shall comply with the Americans With Disabilities Act, any amendments
thereto and any other applicable federal or state laws or regulations and shall provide the
following specialized services and capabilities to benefit the Village's disabled community when
technically feasible:
(A) All closed-captioned programming retransmitted by the system shall include the
closed-caption signal.
(B) All closed-captioned programming shall be identified on the Grantee's program
guide Channels when available from the program source.
(C) The Grantee shall install closed-captioned devices purchased by hearing-impaired
cable Subscribers.
(D) Upon request, the Grantee shall review the need for and availability of special
programming pertaining to the disabled.
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
(A) PEG Access Channels.
(1) The Grantee shall provide four (4) channels to be allocated among public,
educational, and governmental (PEG) access usage. Such allocation shall be determined
by the Grantor in its sole discretion. The Grantor shall promulgate rules and regulations
regarding the use of all such channels. After Grantee is using digital compression
technology in its Cable System, it will consider providing an additional chaunel for non-
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commemial PEG programming in the event the Village requests such additional channel
and provided the four PEG channels are currently fully utilized.
As used herein, "fully utilized" shall mean utilized for original, non-duplicative,
non-character generated locally produced video PEG programming not less than six (6)
hours per day, five (5) days per week.
The one additional channel provided pursuant to this Section 9(A) shall be
reviewed annually by joint review of the Grantee and the Grantor thereafter and upon
such annual review, the additional channel shall continue to be made available to the
extent that the PEG channels (including the original PEG channels) were at least eighty
percent (80%) fully utilized throughout the preceding year. If such usage requirement is
not met, usage of the additional channel shall terminate subject to reactivation at the
request of the Grantor upon demonstration that the four original PEG channels are fully
utilized, and to the annual review provided herein. In no event shall non-PEG
programming be included in determining whether the channels are fully utilized. Non-
PEG programming shall include the programming which is defined as commercial in
nature under the conditions of Sections 611 and 612 of the Cable Communications Policy
Act of 1984, as amended.
(3) In accordance with the 1984 Cable Act and Subsection B, the Grantor or a
non-profit entity to which it has designated such responsibility shall have sole
responsibility for funding the administration, operation and programming of such
channels.
(4) The Grantee shall maintain the distribution system over which such
channels are carried on its Cable System and shall provide that there is no material
degradation in the signals for such channels as are received by the Grantee from the
Grantor for distribution over the Grantee's Cable System.
(B) Equipment and Facilities
The Grantee shall provide an initial Capital Grant of $20,000 to the Grantor and
pay an additional amount equal to that paid by a competitive wireline provider, up to one
(1) percent of Gross Revenues as defined in Section 1.16, to be paid to the Grantor ifTCI
does not provide Village residents with the services of a regional studio. Such additional
payments shall be made quarterly within forty-five (45) days of notification from the
Grantor of the amount paid by such competitive wireline provider and/or Grantee for the
term of the Agreement. Such payments shall not be considered a franchise fee as defined
in Section 3.10 of this Agreement. A regional studio will be considered acceptable if it is
within five miles of the Village's borders.
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(C) PEG Access Operating Costs
(1) The Grantee shall not be responsible for the administration, operation and
programming of such PEG channels, including without limitation all personnel required
in connection with the use of such channels, all facilities, equipment and material
necessary for the use of the channels, the creation, selection and distribution of
programming on such channels, the adoption, administration and enforcement of all rules,
regulations and procedures pertaining to such channels.
(D) Unused PEG Channels. Subject to written authorization from the Grantor, the
Grantee shall have the right to use temporarily any Channel, or portion thereof, which is
allocated under this Section for Public, Educational, or Governmental Access use pursuant to
Section 611 (d) of the Cable Act.
(E) The users of PEG Access Channels shall be responsible for obtaining appropriate
authorization from the owners of intellectual property rights for their use in connection with
Access productions. The Grantee shall make commercially reasonable effort to assist users in
obtaining such authorization. Any user of any Access Channel, equipment or facilities shall agree
in writing to hold the Grantee and the Grantor harmless from any and all liability or other injury
including any reasonable costs of defending claims or litigation (including attorneys' fees and
expenses) arising from all use or in connection with claims for failure to comply with any
applicable laws; for claims of libel, slander, invasion of privacy or the infringement of common
law or statutory copyright; for unauthorized use of any trademark, trade name or service mark;
for breach of contractual or other obligations; for any other injury or damage in law or equity,
which claims result from the users' use of equipment and facilities.
SECTION 10. GENERAL STREET USE AND CONSTRUCTION
10.1 Construction
(A) Subject to applicable laws, regulations and ordinances of the Grantor and the
provisions of this Agreement, the Grantee may perform all construction necessary for the
operation of its Cable System. All construction and maintenance of any and all facilities within
Streets incident to the Grantee's Cable System shall, regardless of who performs the construction,
be and remain the Grantee's responsibility. The Grantee shall apply for, and obtain, all permits
necessary for construction or installation of any facilities, and for excavating and laying any
facilities within the Streets. The Grantee shall pay, upon issuance, all applicable fees of the
requisite construction permits. The Grantor shall not unreasonably withhold issuance of any
permit.
(B) Prior to beginning any construction, the Grantee shall provide the Grantor with a
construction schedule for work in the Streets. All construction shall be performed in compliance
with this Agreement and all applicable Village Ordinances and Codes. When obtaining a permit,
the Grantee shall inquire about other construction currently in progress, planned or proposed, in
order to investigate thoroughly all opportunities for joint trenching or boring. Whenever it is
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possible and reasonably practicable to joint trench or share bores or cuts, the Grantee shall work
with other providers, licensees, permittees and Franchisees so as to reduce as far as possible the
number of pavement cuts within the Village.
10.2 Location of Facilities
The Grantee shall participate in and comply with all requirements of J.U.L.I.E..
10.3 Relocation
The Grantor shall have the right to require the Grantee, within sixty (60) days following
written notice, to change the location of any part of the Grantee's Cable System within the Right
of Way when the public convenience requires such change, and the expense thereof shall be paid
by the Grantee upon written notice. Should the Grantee fail to remove or relocate any such
facilities by the date established by the Grantor in such notice, the Grantor may effect such
removal or relocation, and the expense thereof shall be paid by the Grantee, including all costs
and expenses incurred by the Grantor due to the Grantee's delay. If the Grantor requires the
Grantee to relocate its facilities located within the Right of Way, the Grantor shall make a
reasonable effort to provide the Grantee with an alternate location within the Right of Way. If
funds are generally made available to users of the public rights-of-way for such relocation, the
Grantee shall be entitled to its pro rata share of such funds.
10.4 Restoration of Streets
(A) Whenever the Grantee disturbs the surface of any Street for any purpose, the
Grantee shall promptly restore the Street to at least its prior condition. When any opening is
made by the Grantee in a hard surface pavement in any Street, the Grantee shall, immediately
following completion of work, refill the opening and restore the surface to its prior condition in
accordance with Village requirements.
(B) If the Grantee excavates the surface of any Street, the Grantee shall be responsible
for restoration in accordance with applicable regulations and standards of the Village within the
area affected by the excavation. The Grantor may, after Grantee's failure to restore any
excavation and after providing notice to the Grantee, refill or repave any opening made by the
Grantee in the Street, and the expense thereof shall be paid by the Grantee. The Grantor may,
after providing notice to the Grantee, remove or repair any work done by the Grantee which, in
the determination of the Grantor, is inadequate. The cost thereof, including the costs of
inspection and supervision, shall be paid by the Grantee. All excavations made by the Grantee in
the Streets shall be properly safeguarded for the prevention of accidents. All of the Grantee's
work under this Agreement, and this Section in particular, shall be done in strict compliance with
all rules, regulations and ordinances of the Grantor.
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10.5 Maintenance and Workmanship
(A) The Grantee's Cable System shall be constructed and maintained in such manner
as not to interfere with sewers, water pipes, conduits, wires or any other property of the Grantor,
or with any other pipes, wires, conduits, pedestals, structures, equipment or other facilities that
may have been laid in the Streets by, or under, the Grantor's authority.
(B) The Grantee shall provide and use any equipment necessary to control and carry
the Grantee's signals so as to prevent injury to the Grantor's proper~y or property belonging to
any Person. The Grantee, at its own expense, shall repair, change and improve its facilities to
keep them in good repair, and safe and presentable condition.
10.6 Reservation of the Grantor Street Rights
Nothing in this Agreement shall prevent the Grantor or utilities owned, maintained or
operated by public entities other than the Grantor, from constructing, repairing or removing
sewers; grading, paving, repairing or altering any Street; installing, repairing or removing water
mains; or constructing, maintaining or establishing any other public work or improvement. All
such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use
and operation of the Grantee's Cable System. However, if any of the Grantee's Cable System
interferes with the construction or repair of any Street or public improvement, including
construction, repair or removal of a sewer, water main, conduit or wire, the Grantee's Cable
System shall be removed or replaced in the manner the Grantor shall direct, and the Grantor shall
in no event be liable for any damage to any portion of the Grantee's Cable System. Any and all
such removal or replacement shall be at the expense of the Grantee. Should the Grantee fail to
remove, adjust or relocate its facilities by the date established by the Grantor's written notice to
the Grantee, the Grantor may effect such removal, adjustment or relocation, and the expense
thereof shall be paid by the Grantee, including all reasonable costs and expenses incurred by the
Grantor due to the Grantee's delay.
10.7 Street Vacation
If any Street or portion thereof used by the Grantee is vacated by the Grantor during the
term of this Agreement, unless the Grantor specifically reserves to the Grantee the right to
continue its installation in the vacated Street, the Grantee shall, without delay or expense to the
Grantor, remove its facilities from such Street, and restore, repair or reconstruct the Street where
such removal has occurred, and place the Street in such condition as may be required by the
Grantor. In the event of failure, neglect or refusal of the Grantee, after thirty (30) days' notice by
the Grantor, to restore, repair or reconstruct such Street, the Grantor may do such work or cause
it to be done, and the reasonable cost thereof, as found and declared by the Grantor, shall be paid
by the Grantee within thirty (30) days of receipt of an invoice and documentation, and failure to
make such payment shall be considered a material breach of this Agreement.
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10.8 Discontinuing Use of Facilities
Whenever the Grantee discontinues using any facility within the Streets, the Grantee shall
either remove such facilities or abandon such facilities in place in accordance with Village codes.
The Grantor may require the Grantee to remove the facilities from the Street or modify the
facility to protect the public health, welfare, safety, and convenience, or otherwise serve the
public interest. If the Grantee abandons its facilities, the Grantor may choose to use such
facilities for public, governmental, or educational purposes.
10.9 Hazardous Substances
(A) The Grantee shall comply with all applicable local, state and federal laws,
statutes, regulations and orders concerning hazardous substances relating to the Grantee's Cable
System in the Streets.
(B) The Grantee shall maintain and inspect its Cable System located in the Streets.
Upon reasonable notice to the Grantee, the Grantor may inspect the Grantee's facilities in the
Streets to determine if any release of hazardous substances has occurred, or may occur, from or
related to the Grantee's Cable System. In removing or modifying the Grantee's facilities as
provided in this Agreement, the Grantee shall also remove all residue of hazardous substances
related thereto.
10.10 Undergrounding of Cable
(A) Wiring.
(1) Where electric and telephone utility wiring is installed underground at the
time of Cable System construction, or when such wiring is subsequently placed
underground, all Cable System lines or wiring and equipment shall also be placed
underground on a nondiscriminatory basis with other wire line services at no additional
expense to the Village or Subscribers. Related Cable System equipment such as
pedestals must be placed in easements rather than Right of Way to the extent possible,
but in accordance with Village code requirements and underground utility rules as
administered by the Director of Public Works. In areas where both electric and telephone
utility wiring is aerial, the Grantee may install aerial cable, except when a property owner
or resident requests underground installation and agrees to bear the additional cost in
excess of aerial installation.
(2) The Grantee shall utilize existing poles and conduit wherever possible.
(3) This Agreement does not grant, give or convey to the Grantee the right or
privilege to install its facilities in any manner on specific utility poles or equipment of the
Village or any other Person without their permission. Grantee shall provide, upon request,
proof of permission for pole attachment or use of other equipment.
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(B) Repair and Restoration of Property.
(1) The Grantee shall protect public and private property from damage. If
damage occurs the Grantee shall promptly notify the property owner within twenty-four
(24) hours in writing.
(2) If public or private property is disturbed or damaged, the Grantee shall
restore the property to its former condition, normal wear and tear excepted. Public right-
of-way or other Village property shall be restored, in a manner and within a time
approved by the Director of Public Works. If restoration of public right-of-way or other
Village property is not satisfactorily performed within a reasonable time, the Director of
Public Works may, after prior notice to the Grantee, or without notice where the
disturbance or damage may create a risk to public health or safety, cause the repairs to be
made at the Grantee's expense and recover the cost of those repairs from the Grantee.
Within thirty (30) days of receipt of an itemized list of those costs, including the costs of
labor, materials and equipment, the Grantee shall pay the Grantor. If suit is brought upon
the Grantee's failure to pay for repair or restoration, and if judgment in such a suit is
entered in favor of the Grantor, then the Grantee shall pay all of the Grantor's actual costs
resulting from the non-payment, including damages, interest from the date the bill was
presented, disbursements, attorneys' fees and litigation-related costs. Private property
must be restored promptly, considering the nature of the work that must be performed and
in accordance with a schedule to be determined with the private property owner, except
that restoration work may be suspended during the winter months.
(3) Prior to entering onto private property for construction of its Cable
System, the Grantee shall give the Person residing on or using the property adequate
written notice (such as a door hanger which clearly identifies the anticipated construction)
that it intends to work on the property, a description of the work it intends to perform and
a name and phone number the Person can call to protest or seek modification of the work.
Work shall be done in a manner that causes the least interference with the rights and
reasonable convenience of property owners, residents and users.
(C) Movement of Cable System For and By the Grantor. The Grantor may remove~
replace, modify or disconnect the Grantee's facilities and equipment located in the public right-
of-way or on any other Village property in the case of fire, disaster, or other emergency, or when
a Village project or activity makes the removal, replacement, modification or disconnection
necessary for the Grantor. Except during an emergency, the Grantor shall provide reasonable
notice to the Grantee prior to taking such action and shall, when feasible, provide the Grantee
with the opportunity to perform such action. Following notice by the Grantor, the Grantee shall
remove, replace, modify or disconnect any of its facilities or equipment within any public right-
of-way, or on any other Village property, except that the Grantor shall provide at least one
hundred eighty (180) days' written notice of any maj or capital improvement project which would
require the removal, replacement, modification or disconnection of the Grantee's facilities or
equipment. If the Grantee fails to complete this work within the time prescribed and to the
Grantor's satisfaction, the Grantor may cause such work to be done and bill the cost of the work
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to the Grantee. Within thirty (30) days of receipt of an itemized list of those costs, the Grantee
shall pay the Grantor.
(D) Movement for Other Franchise Holders. If any removal, replacement,
modification, or disconnection is required to accommodate the construction, operation or repair
of the facilities or equipment of another franchise holder, Grantee shall, after at least thirty (30)
days' advance written notice, take action to effect the changes requested by the responsible
entity. The franchise holder requesting the removal, replacement, modification, or disconnection
shall be responsible for paying the reasonable costs incurred by the Grantee in accommodating
such requests.
(E) Movement for Other Permittees. At the request of any Person holding a valid
permit and upon reasonable advance notice, the Grantee shall temporarily raise, lower or remove
its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The
expense of such temporary changes must be paid by the permit holder, and the Grantee may
require a reasonable deposit of the estimated payment in advance.
(F) Tree Trimming. Subject to prior notice to the Village Forester, the Grantee shall
have the authority to trim trees that overhang a public right-of-way of the Village so as to prevent
the branches of such trees from coming in contact with its Cable System, in accordance with
applicable Village codes and regulations and current, accepted professional tree trimming
practices.
10.11 Construction Codes
The Grantee shall strictly adhere to all building and zoning codes currently or hereafter in
effect. The Grantee shall arrange its lines, cables and other appurtenances, on both public and
private property, in such a manner as to not cause unreasonable interference with the use of said
public or private property by any Person. In the event of such interference, the Grantor may
require the removal or relocation of the Grantee's lines, cables and other appurtenances from the
property in question.
10.12 Standards
All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. The Grantee must comply with all safety requirements, roles and practices
and employ all necessary devices as required by applicable law during construction, operation
and repair of its Cable System. By way of illustration and not limitation, the Grantee must
comply with the National Electric Code, National Electrical Safety Code and Occupational
Safety and Health Administration (OSHA) Safety and Health Standards.
SECTION 11. SYSTEM DESIGN
The Grantee shall construct, operate and maintain the cable television system in full
compliance with all applicable local, state and federal laws, including, but not limited to, the
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rules and regulations of the Federal Communications Commission. The Grantee shall be solely
responsible for taking all steps necessary to assure compliance with such laws and regulations
and the safety of its systems as installed.
SECTION 12. GENERAL CONSTRUCTION MATTERS
12.1 Interference
(A) Neither the Grantee's plant and equipment, nor any work the Grantee performs,
shall endanger or interfere in any manner with the rights of any property owner, or hinder or
obstruct pedestrian or vehicular traffic.
(B) The Grantee shall at all times employ professional care and shall install and
maintain in use methods and devices to prevent failures and accidents which could cause injury
or nuisance to the public.
12.2 Test and Compliance Procedures
(A) If the Grantor has jurisdiction to enforce FCC technical standards, the Grantee
shall submit to the Grantor a detailed test plan describing the methods and schedules for testing
the Cable System on an ongoing basis to determine compliance with the provisions of the FCC
technical standards. The tests may be witnessed by representatives of the Grantor, and written
test reports shall be submitted to the Grantor.
(B) If required by FCC rules, the Grantee shall conduct proof of performance tests
designed to demonstrate compliance with this Agreement and FCC requirements, and, upon
request, shall provide to the Village written reports showing the results of such tests.
12.3 Additional Tests
At any time after commencement of service to Subscribers, the Grantor may require
additional tests, full or partial repeat tests, different test procedures or tests involving a specific
Subscriber's terminal. Requests for such additional tests will be made on the basis of complaints
received or other evidence indicating any unresolved controversy or noncompliance, and such
tests shall be limited to the particular matter in controversy. The Grantor shall endeavor to so
arrange its request for such special tests so as to minimize hardship or inconvenience to the
Grantee or to the Subscriber.
SECTION 13. SERVICE EXTENSION, CONSTRUCTION AND INTERCONNECTION
13.1 Equivalent Service
It is the Grantee's general policy that all residential dwelling units in the Franchise Area
have equivalent availability of Cable Services from the Grantee's Cable System and, except as
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allowed by Federal law under reasonable terms and conditions. The Grantee shall not arbitrarily
refuse to provide Cable Services to any Person within its Franchise Area.
13.2 Service Availability
(A) In General. The Grantee shall provide Cable Service within seven (7) business
days of a request by any Person within its Franchise Area. For purposes of this Section, a request
shall be deemed made on the date of signing a service agreement, receipt of funds by the
Grantee, receipt of a written request by the Grantee or receipt by the Grantee of a verified verbal
request. The Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere
in this Agreement;
(2) At an installation charge for a standard installation consisting of a 150 125
foot drop, with additional charges for non-standard installations computed, according to a
methodology for such installations adopted by the Grantee
13.3 Interconnection With Other Cable Systems
(A) The Cable System shall be capable of being connected with contiguous Cable
Systems in the area owned or operated by Grantee.
(B) Grantee shall, in accordance with this Section, attempt to interconnect the public,
educational and governmental access channels of the Cable System with any other Cable System
in the area not owned or operated by Grantee or an Affiliate of Grantee, upon the request of
Grantor, if technically and economically feasible and a mutually acceptable interconnection
agreement is accomplished. Grantor shall not request intercounection except under circumstances
where it can be accomplished without undue burden or excessive costs to the Subscribers and
Grantee.
(1) Upon receiving the request of Grantor to interconnect with a non
Affiliated system, Grantee shall attempt to promptly initiate negotiations with the
other affected Cable System or systems to attempt to reach a mutually acceptable
interconnection agreement, and shall report to Grantor the results of such
negotiations no later than sixty (60) days after such initiation.
13.4 Connection of Public Facilities
The Grantee shall, at no cost to the Grantor, provide at least one (1) outlet of basic and
expanded basic programming to existing public buildings specified in Exhibit B. In addition, the
Grantee shall provide, at no cost to the Grantor, one (1) outlets of basic programming to other
public buildings if the drop line from the feeder cable to such building does not exceed one
hundred and fifty (150) cable feet or if the Grantor or other agency agrees to pay the incremental
cost of such drop line in excess of one hundred and fifty (150) cable feet, including the cost of
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such excess labor and materials. Outlets of basic programming provided in accordance with this
subsection may be used to distribute Cable Services throughout such buildings provided such
distribution can be accomplished without causing Cable System disruption and general technical
standards are maintained. Such outlets shall not be located in public waiting rooms, break
rooms, nor used to entertain public groups, nor shall the outlets be used in any manner that might
violate copyright laws.
13.5 Line Extensions
The Grantee shall offer Cable Service within the Village and to all of the Village's
residents. It shall be the obligation of the Grantee to furnish Cable Service to those areas of the
Village having a density of at least thirty-five (35) homes or dwelling units per linear mile as
measured from the existing distribution network of the Cable System. Additionally, the Grantee
shall extend its service to any resident within the Village who elects to subscribe to the Cable
Service if they are one hundred and fifty (150) feet or less from a distribution cable. However,
for unusual circumstances, such as the existence of more than one hundred and fifty (150) feet of
distance from the distribution cable to connection of service to Subscribers, or a density of less
than thirty-five (35) homes or dwelling units per 5,280 cable-bearing strand feet of trunk or
distribution cable, Cable Service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor and easements. For the purpose of
determining the amount of capital contribution in aid of construction to be borne by the Grantee
and Subscribers in the area in which Cable Service may be extended, the Grantee will contribute
an amount equal to the construction and other costs per mile, multiplied by a fraction whose
numerator equals the actual number of potential Subscribers per 5,280 cable-bearing strand feet
of its mink or distribution cable, and whose denominator equals thirty-five (35). Other potential
Subscribers will bear the remainder of the construction and other costs on a pro rata basis. The
Grantee may require that the payment of the capital contribution in aid of construction borne by
such potential Subscribers be paid in advance.
The Grantee shall also offer Cable Service to commercial establishments in the Village
and continue to offer Cable Service to all areas previously served under the prior cable Franchise,
if any. The Grantee will make its Cable Service available to any commercial establishments not
currently served provided, however, that the commercial establishment pays the Grantee for
installation and new service at rates established by the Grantee.
SECTION 14. TECHNICAL STANDARDS
14.1 Emergency Standby Power
The Grantee shall maintain standby power system supplies, rated for at least three (3)
hours duration, tkroughout the trunk and distribution networks. In addition, throughout the term
of this Agreement, the Grantee shall have a plan in place, along with all resources necessary for
implementing such plan, for dealing with outages of more than three (3) hours. This outage plan
and evidence of requisite implementation resources shall be presented to the Grantor no later
than ninety (90) days following the effective date of this Agreement.
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14.2 Headend Performance
The Grantee shall adopt and maintain technical performance standards for all Headend
systems, including off-air station reception, satellite signals, insertion signals, and equipment for
reception and routing of Interconnected signals from other providers, including inter-connected
networks, consistent with federal law. All system performance testing shall also include all
Headend systems.
SECTION 15. FRANCHISE BREACHES; TERMINATION OF FRANCHISE
15.1 Procedure for Remedying Franchise Violations
(A) If the Grantor believes that the Grantee has failed to perform any material
obligation under this Agreement or has failed to perform in a timely manner, the Grantor shall
notify the Grantee in writing, stating with reasonable specificity the nature of the alleged default.
The Grantee shall have thirty (30) days from the receipt of such notice to:
(1) respond to the Grantor, contesting the Grantor's assertion that a default has
occurred, and requesting a heating in accordance with subsection (B) below; or
(2) cure the default; or
(3) notify the Grantor that the Grantee cannot cure the default within the thirty
(30) days, because of the nature of the default. In the event the default cannot be cured
within thirty (30) days, the Grantee shall promptly take all reasonable steps to cure the
default and notify the Grantor in writing and in detail as to the exact steps that will be
taken and the projected completion date. In such case, the Grantor may set a hearing in
accordance with subsection (B) below to determine whether additional time beyond the
thirty (30) days specified above is indeed needed and whether the Grantee's proposed
completion schedule and steps are reasonable.
(B) If the Grantee does not cure the alleged default within the cure period stated
above, or by the projected completion date under subsection (A)(3), or denies the default and
requests a hearing in accordance with subsection (A)(1), or the Grantor orders a hearing in
accordance with subsection (A)(3), the Grantor shall set a public hearing to be held by the
Village's Board of Trustees to investigate said issues or the existence of the alleged default. The
Grantor shall notify the Grantee of the hearing in writing and such hearing shall take place no
less than thirty (30) days after the Grantee's receipt of notice of the hearing. At the hearing, the
Grantee shall be provided an opportunity to be heard and to present evidence in its defense. The
determination as to whether a default or a material breach of this Agreement has occurred shall
be within the Grantor's sole discretion, but any such determination shall be subject to de novo
review in a court of competent jurisdiction under applicable law.
(C) If, after the public hearing, the Grantor determines that a default still exists, the
Grantor shall order the Grantee to correct or remedy the default or breach within fifteen (15) days
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or within such other reasonable time frame as the Grantor shall determine. In the event the
Grantee does not cure within such time to the Grantor's reasonable satisfaction, the Grantor may:
(1) Withdraw an amount from the letter of credit as provided in Section 5.4
monetary damages;
(2) Revoke this Agreement; or
(3) Pursue any other legal or equitable remedy available under this Agreement
or any applicable law.
15.2 Revocation
(A) The Grantor may revoke this Agreement and rescind all rights and privileges
associated with this Agreement in the event of a material breach including, but not limited to the
following, each of which represents a material breach of this Agreement, provided, however, that
the procedures for defaults under Section 15.1 have been followed:
(1) If the Grantee fails to perform any substantial obligation under this
Agreement or under any ordinances, documents or other terms and provisions entered
into by and between the Grantor and the Grantee;
(2) If the Grantee willfully fails for more than ninety-six (96) hours to provide
continuous and uninterrupted Cable Service, subject to the provisions regarding force
majeure;
(3) If the Grantee practices any fraud or deceit upon the Grantor; or
(4) If the Grantee becomes insolvent, or the subject of a bankruptcy
proceeding.
(B) The Grantor shall provide the Grantee written notice of its intent to consider
revocation under this subsection at least thirty (30) days prior to the date of the hearing in
accordance with subsection (C), below. The Grantee may object in writing to the
Grantor, stating its reasons for its objections.
(C) The Grantor shall hear any Persons interested in the revocation, and shall allow
the Grantee, in particular, an opportunity to state its position on the matter. Within ninety
(90) days after the hearing, the Grantor shall determine whether to revoke the Agreement
and declare that the Agreement is revoked and the letter of credit forfeited; or if the
breach at issue is capable of being cured by the Grantee, direct the Grantee to take
appropriate remedial action within the time and in the manner and on the terms and
conditions that the Grantor determines are reasonable under the circumstances. The
Grantor, may at its sole discretion take any lawful action which it deems appropriate to
enforce the Grantor's rights under the Agreement in lieu of revocation of the Agreement.
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15.3 Removal
(A) In the event of termination, expiration and non-renewal or revocation of this
Agreement, the Grantee must either remove or abandon in place the above-ground Cable System
facilities and such underground facilities as required by the Grantor in order to achieve
reasonable engineering or Street-use purposes, from the Franchise Area at the Grantee's sole
expense within a reasonable period of time as determined by the Grantor. In removing its plant,
structures and equipment, the Grantee shall refill, at its own expense, any excavation that is made
by it and shall leave all Street, public places and private property in as good a condition as that
prevailing prior to the Grantee's removal of its equipment.
(B) If the Grantee chooses to remove facilities and such removal is not completed to
the reasonable satisfaction of the Grantor, the Grantor may cause the work to be done and the
Grantee shall reimburse the Grantor for the reasonable costs incurred within thirty (30) days after
receipt of an itemized list of the costs or the Grantor may recover the costs through the letter of
credit provided by the Grantee.
15.4 Receivership and Foreclosure
(A) At the option of the Grantor, subject to applicable law, this Agreement may be
revoked one hundred twenty (120) days after the appointment ora receiver or trustee to take over
and conduct the business of the Grantee whether in a receivership, reorganization, bankruptcy or
other action or proceeding unless:
(1) The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
(2) The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the terms and provisions of this
Agreement, and have remedied all defaults under the Agreement. Additionally, the
receivers or trustees shall have executed an agreement duly approved by the court having
jurisdiction, by which the receivers or trustees assume and agree to be bound by each and
every term and provision of this Agreement.
(B) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant, property and equipment of the Grantee, the Grantor may serve notice of revocation on the
Grantee and to the purchaser at the sale, and the rights and privileges of the Grantee under this
Agreement shall be revoked thirty (30) days after service of such notice, unless:
(1) The Grantor has approved the transfer of the Agreement, in accordance
with the procedures set forth in this Agreement and as provided by law; and
(2) The purchaser has agreed with the Grantor to assume and be bound by all
of the terms and conditions of this Agreement.
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15.5 Non-enforcement by the Grantor
The Grantee is not relieved of its obligation to comply with any of the provisions of this
Agreement by reason of any failure of the Grantor to enforce prompt compliance. The Grantor's
forbearance or failure to enforce any provision of this Agreement shall not serve as a basis to
stop any subsequent enforcement. The failure of the Village on one or more occasions to
exercise a right or to require compliance or performance under this Agreement or any applicable
law shall not be deemed to constitute a waiver of such right or a waiver of compliance or
performance, unless such right has been specifically waived in writing. Any waiver of a breach
is not a waiver of any other breach, whether similar or different from that waived.
SECTION 16. ABANDONMENT
16.1 Effect of Abandonment
If the Grantee abandons its system during the Agreement term, the Grantor, at its option,
may operate the Cable System; designate another entity to operate the Cable System temporarily
until the Grantee restores service under conditions acceptable to the Grantor or until the
Agreement is revoked and a new franchisee is selected by the Grantor; or obtain an injunction
requiring the Grantee to continue operations. If the Grantor is required to operate or designate
another entity to operate the Cable System, the Grantee shall reimburse the Grantor or its
designee for all reasonable costs and damages incurred. For purposes of this section, Abandon
shall mean the surrender, relinquishment or disclaimer of the rights to operate the Cable System,
evidenced by nonuse for a period of seven (7) days and lack of significant evidence of intent to
resume use.
SECTION 17. FRANCHISE RENEWAL AND TRANSFER
17.1 Renewal
The Grantor and the Grantee agree that any proceedings undertaken by the Village that
relate to the renewal of the Grantee's Agreement shall be governed by and comply with the
provisions of Section 626 of the Cable Acts, unless the procedures and substantive protections
set forth therein shall be deemed to be preempted and superseded by the provisions of any
subsequent provision of federal or state law.
In addition to the procedures set forth in said Section 626(a), the Grantor agrees to notify
the Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests, as well as, the past performance of the Grantee under the
then current Franchise term. Notwithstanding anything to the contrary set forth herein, the
Grantee and the Grantor agree that at any time during the term of the then current Franchise,
while affording the public adequate notice and opportunity for comment, the Grantor and the
Grantee may agree to undertake and finalize negotiations regarding renewal of the then current
Agreement and the Grantor may grant a renewal thereof. The Grantee and the Grantor consider
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the terms set forth in this section to be consistent with the express provisions of Section 626 of
the Cable Acts.
17.2 Transfer
(A) The Cable System and this Agreement shall not be sold, assigned, transferred,
leased, or disposed of, either by involuntary sale or by voluntary sale, merger, consolidation, nor
shall title thereto, either legal or equitable, or any right, interest, or property therein pass to or
vest in any Person or entity, without the prior written consent of the Grantor, which consent shall
not be unreasonably withheld. Any attempted sale, assignment, transfer, lease or disposition of
this cable system, or this Agreement, without the prior written consent of the Grantor, may
invalidate this Agreement.
(B) The provisions of this section shall apply to the sale or transfer of all or a majority
of the Grantee's assets, merger, consolidation, or sale or transfer of stock in the Grantee so as to
create a new controlling interest. The term "controlling interest" as used herein is not limited to
majority stock ownership, but includes actual working control in whatever manner exercised.
(1) The parties to the sale or transfer shall make a written request to the
Grantor for its approval of a sale or transfer and furnish all information required by law
and the Grantor.
(2) The Grantor shall render a final written decision on the request within one
hundred twenty (120) days of the request provided it has received all requested
information. Subject to the foregoing, if the Grantor fails to render a final decision on the
request within one hundred twenty (120) days, such request shall be deemed granted
unless the requesting party and the Grantor agree to an extension of time.
(3) Within thirty (30) days of any transfer or sale, if approved or deemed
granted by the Grantor, the Grantee shall file with the Grantor a copy of the deed,
agreement, lease or other written instnnnent evidencing such sale or transfer of ownership
or control, certified and sworn to as correct by the Grantee and the transferee that acquires
this Agreement shall file its sworn acceptance and agreement to abide by each and every
provision of this Agreement.
(C) In reviewing a request for sale or transfer, the Grantor may inquire into the legal,
technical and financial qualifications of the prospective controlling party or transferee, and the
Grantee shall assist the Grantor in so inquiring. The Grantor may condition said sale or transfer
upon such terms and conditions as it deems reasonably appropriate; provided, however, any such
terms and conditions so attached shall be related to the legal, technical, and financial
qualifications of the prospective controlling party or transferee as they relate to the ability of the
transferee to fully perform all of the terms and conditions of this Agreement by the Grantee.
Notwithstanding anything to the contrary in this Section, the prior approval of the
Grantor shall not be required for any sale, assignment or transfer of the Agreement or Cable
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System for cable television system usage to an entity controlling, controlled by or under the same
common control as the Grantee provided that the proposed assignee or transferee must show
financial responsibility as may be determined necessary by the Grantor and must agree in writing
to comply with all provisions of the Agreement.
SECTION 18. SEVERABILITY
If any Section, subsection, paragraph, term or provision of this Agreement is determined
to be illegal, invalid or unconstitutional by any court of competent jurisdiction or by any state or
federal regulatory authority having jurisdiction thereof, such determination shall have no effect
on the validity of any other Section, subsection, paragraph, term or provision of this Agreement,
all of which will remain in full force and effect for the term of the Agreement.
SECTION 19. MISCELLANEOUS PROVISIONS
19.1 Preferential or Discriminatory Practices Prohibited
The Grantee shall not discriminate in hiring, employment or promotion on the basis of
race, color, creed, ethnic or national origin, religion, age, sex, sexual orientation, marital status,
or physical or mental disability. Throughout the term of this Agreement, the Grantee shall fully
comply with all equal employment or nondiscrimination provisions and requirements of federal,
state and local law and, in particular, FCC rules and regulations relating thereto.
19.2 Notices
Throughout the term of the Agreement, the Grantee shall maintain and file with the
Grantor a local address for the service of notices by mail. A copy of all notices from the Grantor
to the Grantee shall be sent, postage prepaid, to such address and such notices shall be effective
upon the date of mailing. At the effective date of this Agreement, such address shall be
TCI of Illinois, Inc.
PO Box 7606
Mount Prospect, IL 60056
ATTN: Franchising Director
With a copy to:
TCI of Illinois, Inc.
111 Pfingsten Rd. Suite 400
Deerfield, IL 60015
Attention: Legal Department
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All notices to be sent by the Grantee to the Grantor under this Agreement shall be sent,
postage prepaid, and such notices shall be effective upon the date of mailing. At the effective
date of this Agreement, such address shall be:
Village of Mount Prospect
100 South Emerson
Mount Prospect, IL 60056
Attention: Village Manager
19.3 Binding Effect
This Agreement shall be binding upon the parties hereto, their successors and assigns.
19.4 Authority to Amend
This Agreement may be amended at any time by written agreement between the parties.
19.5 Governing Law
This Agreement shall be governed in all respects by the laws of the State of Illinois and
the United States of America.
19.6 Statute of Limitations
Any claim or legal action arising from or in connection with any failures in the operation
or the performance or non-performance of any obligation under this Agreement including
payment of any amounts due must be brought within five (5) years after the date the cause of
action accrues.
19.7 Captions
The captions and headings of this Agreement are for convenience and reference purposes
only and shall not affect in any way the meaning or interpretation of any provisions of this
Agreement.
19. 8 Joint Work Effort
This Agreement is the joint work effort of the parties and, in the event of any ambiguities,
no inferences shall be drawn against either party.
19.9 Entire Agreement
This Agreement and the documents and Exhibits that are referred to in this Agreement
constitute the entire agreement among the parties pertaining to the subject matter of this
Agreement, and supersede all prior and contemporaneous agreements, ordinances,
understandings, negotiations and discussions of the parties, whether oral or written, and there are
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o representations or other agreements among the parties in connection with the subject matter of
this Agreement, except as specifically set forth under this Agreement. Specifically, Resolution
No. ~. c~c~ , A resolution Providing for the Awarding of Cable Television Franchises in the
Village of Mount Prospect shall not govern the relationship between Grantee and Grantor. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision of this Agreement.
AGREED TO THIS I{~'r'[-~ DAY OF ~-^~o~^g~/ ,1999.
TCI of ILLINOIS, INC
TELENOIS, INC DfB/A VILLAGE OF MOUNT PROSPECT
1/15/99
EXHIBIT A
CUSTOMER SERVICE OBLIGATIONS
I. Office Hours and Telephone Availability
A. Grantee will maintain a local, toll-free or collect call telephone access line which will be
available to its customers 24 hours a day, seven days a week.
B. Trained representatives will be available to respond to customer telephone inquiries
during normal business hours.
C. After normal business hours, the access line may be answered by a service or an
automated response system, including an answering machine. Inquiries received after
normal business hours must be responded to by a trained representative on the next
business day.
D. Under normal operating conditions, telephone answer time by a customer representative,
including wait time, shall not exceed 30 seconds when the connection is made. If the call
needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall
be met no less than 90% of the time under normal operating conditions, measured on a
quarterly basis.
E. Grantee will not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards above unless an historical record of
complaints indicates a clear failure to comply.
F. Under normal operating conditions, the customer will receive a busy signal less than three
percent of the time.
G. Bill payment locations will be open at least during normal business hours. Grantee will
make reasonable efforts to assure that bill payment locations will be conveniently located
based on expressed Subscriber preference.
II. Installation, Outages, and Service Calls
A. Under normal operating conditions, each of the following four standards will be
met no less than 95% of the time measured on a quarterly basis:
1. Standard installations will be performed within seven business days after
an order has been paid.
2. Excluding conditions beyond its control, Grantee will begin working on
"service interruptions" promptly and in no event later than 24 hours after
the interruption becomes known. Grantee must begin actions to correct
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other service problems no later than the next business day after
notification of the service problem.
3. The "appointment window" alternatives for installations, service calls, and
other installations activities will be either a specific time, or at a
maximum, a four hour time block during normal business hours. (Grantee
may schedule service calls and other installation activities outside of
normal business hours for the express convenience of the customer.)
4. Grantee may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
5. Ifa Grantee representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled,
Grantee will make its best effort to contact the customer. The appointment
will be rescheduled, as necessary, at a time which is convenient for the
customer.
6. If a Subscriber is not at home when Grantee performs a service call,
Grantee shall advise the Subscriber by telephone or in writing of any
action taken during such service call.
7. The Grantee shall not impose any fee or charge upon a Subscriber for any
service call to the Subscriber's premises to perform any repair or
maintenance work (exclusive of inside wire) unless the work was
necessitated by an intentional act or negligence of the Subscriber.
8. The Grantee shall provide a convenient method or methods of replacing
inoperable equipment such as remotes and converter boxes. Such methods
could include, inter alia, pickup and delivery by Grantee or a conveniently
located pickup/delivery location.
III. Communications Between Franchise and Cable Subscribers
A. Notifications to Subscribers
1. Grantee shall provide written information on each of the following areas at
the time of installation of service, at least annually to all Subscribers, with a copy to the
Village's Public Information Officer, and at any time upon request:
(i) Products and services offered;
(ii) Prices and options for programming services and conditions of
subscription to programming and other services;
(iii) Installation and service maintenance policies;
(iv) Instructions on how to use the Cable Service;
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(v) Channel positions of programming carried on the system; and
(vi) Billing and complaint procedures, including the address and
telephone number of the Issuing Authority's cable office.
2. Customer and the Grantor will be notified of any changes in rates,
programming services or channel positions as soon as possible in writing. Notice must be
given to Subscribers a minimum of 30 days in advance of such changes if the change is
within the control of Grantee. In addition, Grantee shall notify Subscribers 30 days in
advance of any significant changes in the other information required by the preceding
paragraph. Grantee shall not be required to provide prior notice of any rate change that is
the result of a regulatory fee, franchise fee, or any other fee, tax assessment or charge of
any kind imposed by any Federal Agency, State, or the Issuing Authority on the
transaction between Grantee and the Subscriber.
IV. Billing
A. Bills will be clear, concise and understandable. Bills must be fully itemized, with
itemizations including, but not limited to, basic and premium service charges and equipment
charges. Bills will also clearly delineate ail activity during the billing period, including optional
charges, rebates and credits. Bills shall not require payment less than 15 days from postmark.
B. In case of a billing dispute, Grantee must respond to a written complaint from a
customer within 30 days. The Subscriber shall not be required to pay the disputed portion of the
bill until the dispute is resolved. The Grantee shall not apply finance charges, issue delinquency
notices or terminate service, or initiate collection procedures for the disputed portion of the bill
while the dispute is pending. The Grantee shall take whatever review is necessary to resolve the
dispute and shall notify the Subscriber of the results of the review as soon as it is completed, but
not later than 20 business days after receipt from the Subscriber of the billing dispute, problem or
complaint notification.
C. Bills will display the address and telephone number of the Issuing Authority's
cable office.
V. Refunds
A. Refund checks will be issued promptly, but no later than either:
I. The customer's next billing cycle following resolution of the request or 30
days whichever is earlier, or
2. The return of the equipment supplied by Grantee, if service is terminated.
B. Credits for service will be issued no later than the customer's next billing cycle
following the determination that a credit is warranted.
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VI. The Grantee shall ensure that the Subscriber's premises are promptly restored to their
original conditions if damaged by the Grantee's employees or agents in any respect in connection
with the installation, repair or disconnection of Cable Service.
VII. The Grantee shall exercise its best efforts to limit any scheduled interruption of any Cable
Service for any purpose to periods of minimum use.
VIII. If Grantee repeatedly fails to comply with any material requirement set forth in this
Exhibit, the Village may elect to treat such failures as a failure to comply with a material
provision of this Agreement.
IX. The Village may summon the Grantee to appear for an administrative hearing to review
the Grantee's apparent repeated failure to comply with the material provisions of this Exhibit. A
written notice advising the Grantee of the Administrative hearing shall be sent by certified mall.
The notice shall identify the time, place and reason that the administrative hearing has been
called.
From the information gained through the hearing, the Village may:
A. Issue a formal notice for correction of violations of this Exhibit.
B. Recommend that the Village proceed pursuant to Section 15.1 of this
Agreement.
C. Find that the Grantee is not in violation of any portion of this Exhibit and that no
further action is required by the Village.
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EXHIBIT B
PUBLIC FACILITIES DESIGNATED FOR CABLE SERVICE
School District 59
Forest View Elementary
1901 Estates Drive
Holmes Junior High
1900 West Lormiquist Blvd.
John Jay Elementary
1835 Pheasant Trail
School District 26
1900 East Kensington Road
Euclid Elementary
1211 Wheeling Road
Indian Grove Elementary
1340 Burning Bush Lane
River Trails Middle School
1000 Wolf Road
School District 21
Robert Frost Elementary
1805 Aspen Drive
School District 57
701 West Gregory
Fairview Elementary
300 N. Fairview
Lions Park Elementary
300 E. Council Trail
Lincoln Junior High
700 W. Lincoln
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Westbrook
105 S. Busse Road
School District 214
Prospect High School
801 W. Kensington Road
Public Facilities
Mount Prospect Public Library
10 S. Emerson
Mount Prospect Park District
1000 W. Central Road
River Trails Park District
1313 Burning Bush Lane
Village of Mount Prospect Facilities
Village Hall
100 S. Emerson
Senior Center
50 S. Emerson
Police and Fire Building
112 E. Northwest Highway
Public Works Building
1700 W. Central Road
Fire Station 12
1601 W. Golf Road
Fire Station 14
2000 E. Kensington Road
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